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tv   [untitled]    August 23, 2011 3:30am-4:00am PDT

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so this is somebody that talks a good story, but by his acts he's demonstrated that there was never an intent to comply with the conditions he agreed to. and frankly, i don't believe he would have ever done so had he not been forced to do so, that things came to a point where he was about to essentially lose the business by virtue of the revocation of the c.e.u.. so drastically reduce the fines would be to undermine the process and to take away the incentive of any business in this city who operates under the kbs. -- conditions. >> next speaker, please. >> my name is judith and i'm on the board of the caster eureka neighborhood association. i want to say that both neighborhood so,s are dedicated to working with businesses in
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order to have a vibrant business community. we have an entertainment district there. same thing. we want to have it, but we also want the residents nearby to be able to enjoy their homes and not be driven away by a business that simply does not respect the neighborhood. as a person who has tried to work with greg, has gone by to see what's going on there, it's just very, very frustrating and demoralizing to work with this person. we've never spent as much time in a business as we've spent with this business. and we think he's gotten multiple chances. just a simple thing of keeping the door closed and rolling down the door to the patio, which is a roll-down door and
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is glass. it doesn't create a wall. it's glass. he couldn't seem to bring himself to do that even when the fines were rolling up. if there have been no complaints in the last three months, that does not mitigate what he's been doing all the time. now suddenly he's going to be a good boy. no. we don't believe that. he's got to be made to recognize the law is the law, an he's subject to it, just like everybody else. and that conditions of use on a planning department permit is real. it's not just do it if you can. it's an agreement, it's a contract. and he doesn't seem to recognize these things. we're very discouraged. we still want his business to
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succeed, but he has to know that it's serious. he can't just keep getting away with this. we really expect that businesses in our neighborhood will add character and value to the neighborhood and it's been just the opposite with this business. so we ask you not to take jurisdiction and allow this fine to stand, which is actually not so much, considering the potential of his business. thank you very much. >> next speaker, please. >> hello. i'm a neighbor. i live across the street from trigger. i've been dealing with -- i've lived in the neighborhood for over 10 years, and there's always been a bar across the street. it was a neighborhood bar, not noisy or crazy. since greg took over and made jet, that was a problem. when he did want to make it
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into trigger, he had to have all these special conditions, which he hasn't complied with. especially the noise. and even as recent as monday night, the bass sound is still just booming out of there. i've sent emails. i don't even call him, because he never answers his phone. he never responds to the emails either. so enforcement -- paying these fines would maybe send him a message that people are serious about what he's doing, that it's not good. i've gone across the street. i've talked to the people who are running the door, and there's people screaming on the streets. they're all kind of drunk and out of their minds. that's like 1:00 and 2:00 in the morning. so i don't even get to sleep till 2:00 in the morning after he turns the sound down. i've dealt with greg. i've gone to the entertainment commission meetings, i've dealt with kate o'connor so many times and i've been -- seems like taking up a lot of people's time for greg, who doesn't really want to deal with the problem.
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so i hope that he gets the message this time and that he will do something about that and have to pay the fine. thank you. >> did you want to say your name, sir? >> oh, jim hannah. >> next speaker, please. >> good evening, commissioners. my name is pat, and i'm a resident that lives behind trigger, over on 16th street. and i want to echo the feelings of the debose triangle neighborhood association. the neighborhood has tried to work through the association. unfortunately, not everybody can come to these meetings to voice their opinion. and so the neighborhood associations try to represent the neighbors in that area. before trigger opened, you
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know, they had meetings with the neighbors. they made a lot of promises all the time and said we're working with the neighborhood associations on what the terms of operation were going to be. everybody thought that it was going to be great, and then the bar opened and it was don't plan on sleeping until after the bar closed. i will say that more recently the noise has been not as consistent. it's sporadic, but it still exists. and there's a pattern of nuisance and violations here. as residents of san francisco, we expect businesses, neighbors, we expect compliance, and we depend on our government to reinforce when there are repeated violations. and so i would urge you today to let the fine stand as it is
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and let it be paid, so that those of us who have made this journey with this business to try to make it comply, and it hasn't complied that, we know that we have a system that works. thank you. >> is there any other public comment? ok, seeing none, then, commissioners, the matter is submitted. >> i'll start. i'm almost sorry mr. braunstein is not here. just curious to see what he would look like. but he is -- has artlessly transformed people who supported him in his business into adversaries and he has ignored the conditions of his c.u., which allows him to be in business. and worse yet, he has ignored the needs of his community that
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he finds himself doing business in. and for us to grant jurisdiction in order to consider lowering the penalties i think would be much more than unreasonable. i do not intend to support granting jurisdiction. >> the issue here is whether there were circumstances or due process issues related to the case whereby jurisdiction may be an appropriate way to deal with it. it's not dealing with the actual case itself, either the fine or the conditions at this point that are apparently not being met. on the one hand the
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presentation on the reasons for jurisdiction were very minimal and they were not extensive enough to be granted. the question is whether or not we can, through the office of this board, sometimes assist in crafting a solution. perhaps that's the optimist in me. whether that is an appropriate reason for granting jurisdiction or not is to be determined. i'm not sure yet where i'm going to go with this. >> well, then, i'm happy to go next. tonight is about a process question. i heard nothing compelling to combrant jurisdiction this evening -- grant jurisdiction this evening. i think we're not really supposed to consider the merits, but you hear the merits and you hear a long attitude
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of, perhaps, disregard with respect to the neighbors. everybody deserves their day in court and it certainly seems this person has had plenty of opportunities through either the entertainment commission, planning commission or otherwise, to craft compromises with neighbors and so forth. so i would not be inclined to support the jurisdiction request. >> i don't have much further to add, and my inclination would be not to grant as well. >> and i agree with that as well. and i need to put on the record, too, that i was absent for the july 13, 2011, hearing on this matter, but i did watch the video. is there a motion, commissioners? >> i'll move to deny jurisdiction requests. the request for jurisdiction, excuse me. >> if you would call the roll, please. >> on that motion, from commissioner peterson, to deny this jurisdiction request.
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[roll call taken] >> the vote is 4-1. jurisdiction is denied. thank you. >> and we'll call item number six, which is ateal number 11-079, matt patel doing business at 7-eleven. subject property is at 3898 19th street, appealing a suspension of a tobacco permit imposed on june , 2011. the reason for suspension is selling tobacco products to minors. it's on for hearing today and we'll start with the appellant, mr. patel. you have seven minutes. >> thank you. good afternoon, commissioners.
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it's quite unusual -- sorry. thank you. my name is matt patel. i own the 7-eleven, and i've been a franchisee there for 16 years. i've been in this industry for 23 years. it is a matter of a situation where reading the report -- is the report correct? it's creble. i'm not here to question the report or how the whole process was handled. i'm here to move forward to the next level which is, yes, the tabakco sale was sold to a minor. there are two different issues here. one is, what is the penalty for a franchisee versus a penalty for an employee, an employee who's there trying to live a life. it's not an educated employee
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that we train, coach and guide to make sure they do the proper job going forward. i've been helping the court for two years, especially in 2009, 2010, which was part of the small community court by jackson gee. in the district, working with andrea, vells al harris. most of the cases that we used to get there were similar type of cases, and the penalties for them were usually $50 to $150 and eight to 10 hours community service. penalty for a person being the first offense -- if it was alcohol-related, it would have been a fine of $1,500 to $2,000. this is the first pent that has ever occurred at this location or in my history of dealing with this retail industry. having a 25-day suspension will
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definitely hurt the business. a, it will take a longer time to bring the business back to normal conditions. however, the worse scenario would be for me to terminate or lay off two employees, as well as our important issue here is the san francisco cigarette tax, which i have always supported, saying that it always helps the city keep it clean. in this situation it will actually hurt, because the city will lose the revenue of $1,800 to $2,000 a month, especially during this time. yes, the lesson's been learned that there was a mistake that's been made. precautions have been made already that all the employees have been retrained. now, is it fair for a 25-day suspension? am i going to learn the same lesson whether it's for five days or 25 days? i think so. i think even a suspension of one day is going to teach me a lesson to make sure that i need to stay on top and retrain and recoach the staff more frequent. there are many different
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aspects that's already been in place here as of a secret shopper that's been doing it for the last four or five years. it has come negative all these years as selling tobacco products or alcohol product to a minor. so, again, it was a legitimate mistake. it was a mistake done by a clerk. and i'm moving to accept a penalty. but 25-day suspension is a severe penalty. thank you. >> thank you. you can hear from the department now. >> good evening, commissioners. i'm representing the san francisco health department. i think the appellant made my work very easy, so i'm not going to make a very elaborate presentation tonight. i want to say that the clerk was acting on behalf of the
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appellant, and, therefore, the appellant is responsible for the actions of his clerk, his agent. the health code allows the department to suspend a permit, tobacco sales permit, for up to 90 days for the first offense. the department only suspended this said permit for only 25 days. the appellant also stated that he has provided adequate training for all his employees. this very case is actually very disturbing in the sense that the clerk actually asked the minor for her age, and the minor told the clerk that she wasn't 18 years old at the time
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that the purchase was made. but the appellant -- i mean the clerk or the appellant went ahead to sell the cigarettes anyway. i'm wondering how thorough the training has been for such a clerk to go ahead to sell a cigarette to a minor, after the minor told him that she's not 18 years old. it is very apparent here what transpired. somebody was not paying attention or willing to adhere to the law. and i was sitting with the police officer who was with them at the time. the person was 16 at the time and looked her age. in addition, the decoy told the clerk that she was not 18. they proceeded to sell the
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cigarettes. many establishments that came before the board in the past have always argued on the side that such suspension will cause -- they should have taken adequate precautions to make sure to adhere to the dictates of the law. the department strongly feels that the 25-day suspension is very reasonable and the department is respectfully asking the board to deny the appellant's appeal and to suspend the permit for 25 days. thank you. >> doctor, i have a question. we heard about and we read about a cash register that automatically checks the driver's license when the driver's license is swiped through. can you talk about that? how expensive is it, how reliable is it?
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is it something we can require? >> well, i don't know how reliable it is. i have not actually seen one. i've seen pictures, but i have not actually gone to the site to test whether or not the machines are very adequate. i also don't know how expensive they are. >> thanks. >> is there any public comment on this item? seeing none, mr. fratelli, you have three more minutes of rebuttal, if you care to speak again. >> i do have a gentleman who actually did sell to the young lady. he's right behind me. the case, what the police officer did right, saying that age was asked and the young lady did answer the question, saying that she was 16, that is incorrect. that is incorrect. and commissioner, your question
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was, how efficient is the register now, since we have changed all the registers to mandatory i.d. swiping. it is 100%. moving forward, that all of the registers will be changed with the new program. without the identification, california driver's license, it will not activate or the sale will not be made without the actual driver's license. and the only way they will be able to make it -- they have to swipe the driver's license, and on that driver's license, that date of birth will be registered on the p.u.s. system. so if there's a receipt being asked, the last two digits of your date of birth will be printed now. so we have taken these precautions after all this. >> i have some questions, but i wanted to allow you to finish your comments during rebuttal, if you have more comments. >> i do have a clerk here who can also testify to say that age was not given.
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that's pretty much it. >> so the cash registers -- you took out your old cash registers and you put in the new ones that require the swiping of the driver's license? >> no. it's still the same cash register, same p.u.s. system, but there's a new software system installed. it will limit to purchase alcohol and tobacco both based on the age. it automatically calculates. so, again, you have to understand we have clerks -- these are not college-graduate clerks. these clerks need help to come up in life, and instead of being out on the street i'm coaching and guiding them to make a better life. to make their life easier instead of guessing, whether it's a person over 18, instead of guessing that whole process, all they have to do is swipe the driver's license. and the driver's license will automatically tell the register or the p.u.s. system and say,
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yes, if they are old enough to purchase for tobacco or alcohol. if the person is under age, it will not go through the transaction. it will reject the transaction. >> do you have signs up in your shop that show -- >> yes, we do. >> the signs i've seen show the year. if it's such and such a year, then the person is too young. >> i agree. yes, we do have those signs as well. >> ok. and we do have specific companies that actually does this on a monthly basis, just to come and do a secret shopping to make sure that we do follow tross procedures. and it's different days, different hours i'm based on different hours. >> ok. mr. patel, i guess i'm struggling with that most story owners come in, and the clerk has made an error in calculating the years on the i.d. >> sure. >> it seems here there was no i.d. even checked. walk me through what the clerk
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told you what happened. >> the clerk -- i requested the clerk what happened, and his response was he asked the young lady, are you old enough to purchase this. again, with the tobacco, in his eyes the young lady looked like she was over 18. and he askedand she nodded her . she just looked down. she indicated to him that she was over a team. -- over 18. >> did you say you brought your clerk here? >> i do have him. the same individual. commissioner peterson: do you mind if he comes up? >> absolutely not. >> this lady came to the store to purchase cigarettes. i asked her if she was old enough to buy a cigarette.
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she did not answer the question. she just put her head down. i made the purchase. commissioner peterson: did you ever ask for identification? >> i did not ask that. commissioner peterson: why not? >> i even told her, the decoy, that she did not answer my question. commissioner peterson: thank you. president goh: i have a question for mr. patel. you are 18th and noe. isn't that three blocks from mission high school? >> it is four blocks. vice president garcia: in your papers, you have what is called
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a product movement analysis. how is that generated? >> that is based from our ipo's system -- our pos system, whether it is alcohol, confectionery. vice president garcia: it is software you have that generates these figures? you did not reproduce these figures free hand? >> absolutely not. vice president garcia: you mentioned the fine for first sale of up a whole was $1,500. i think it -- of alcohol was $1,500. i think it is $250. based on the figures you presented, did you extract from those figures what the finance that you will pay? >> i did not. i was going to leave that in your hands. vice president garcia: how would you go about doing that?
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let us say your profit is -- >> it is 27%, 26%. >> that is all right. it shows the gross product of percentage -- the gross product percentage. it is going to beat 5/6 of that. if you extend those figures, based upon sales of $38,000 -- >> i am sorry? vice president garcia: what are your monthly sales? >> i believe it was $35,000. vice president garcia: you have for this month 38,000. >> it does vary month to month. >> if you -- vice president garcia: if you do a monthly average, it works out to be
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$26,000. if you extend the monthly percentage -- >> 30% of that? i am probably looking at about $8,000. vice president garcia: $8,250. that is what you're fine is tantamount to, relative to your sales and based on your gross profit percentage. i just want to leave that hanging. >> can i answer your question? >> i do not know that i have a question. >> if it is a 25 day suspension, i still have to pay for the loss of revenue, which averages. part of the franchise agreement is based on 50/50 of the profits, not net profits, but gross profit. even if it is a 75 day
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suspension. i am obligated to pay them that money. >> that does not make sense. you said there would be a loss of revenue to the city. you would have to have an assumption that everybody who bought cigarettes from you would not buy cigarettes for that 25 days. that is not loss of revenue. that is not a reasonable argument. but how can you paper profit you do not get? what profits do you have to share? >> based on the past 12 months of numbers generated for that category. whatever the gross profit was, the average growth -- average gross process -- profits, i still have to pay 7-eleven their share. i do have a representative here from 711. vice president garcia: if in
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2010, you sold $20,000, and their profit was 50%, and you paid them $5,000, the following year you owe them $5,000? >> for the current 12 months, that is correct. whatever the days i am suspended for, whatever the loss of revenue that has generated for them, and still have to pay them. that is correct. vice president garcia: i guess that would be a doubling of the fine. ok. >> dr. ogi, you have a rebuttal. >> i do not have any reason to doubt the police services that went to the site with the

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